Alliance for the Wild Rockies v. Burman
| Decision Date | 10 August 2020 |
| Docket Number | CV 20-22-GF-KLD |
| Citation | 477 F.Supp.3d 1151 |
| Parties | ALLIANCE FOR the WILD ROCKIES, Plaintiff, v. Brenda BURMAN, Commissioner, U.S. Bureau of Reclamation; David Bernhardt, Secretary, U.S. Department of Interior, Defendants. |
| Court | U.S. District Court — District of Montana |
Rebecca Kay Smith, Public Interest Defense Center, Timothy M. Bechtold, Bechtold Law Firm, Missoula, MT, for Plaintiff.
Devon Lea Flanagan, U.S. Department of Justice - E.N.R.D. General Litigation, Washington, DC, for Defendants.
Plaintiff Alliance for the Wild Rockies, Inc. ("Alliance"), brings this action under the Endangered Species Act ("ESA") challenging the Bureau of Reclamation's ("Reclamation") alleged ongoing, unpermitted take of bull trout through its operation of the Milk River Irrigation Project located east of Glacier National Park. Reclamation has moved to dismiss Alliance's complaint under Fed. R. Civ. P. 12(b)(1), arguing Alliance's claim is moot. (Doc. 7.) In the alternative, Reclamation requests a stay of proceedings. For the following reasons, Reclamation's motion is DENIED.
Alliance filed this action on March 25, 2020 challenging Reclamation's unpermitted incidental take of bull trout in violation of under Section 9 of the ESA. (Doc. 1.) Alliance alleges Reclamation's water control and delivery structures in the St. Mary River drainage, as part of the Milk River Irrigation Project, are negatively affecting the native fish population resulting in the mortality of bull trout, a threatened species. (Doc. 1 at ¶¶ 11-23.)
The Milk River Irrigation Project was authorized in 1903 to provide for irrigation in the lower portion of the Milk River basin in northcentral Montana. (Doc. 8 at 10.) Reclamation operates and maintains the project which consists of multiple water diversion structures including the Lake Sherburne Dam and Reservoir, the Swiftcurrent Creek Dike, the St. Mary Diversion Dam and Headworks, the St. Mary Canal, and appurtenant structures. (Doc. 8 at 11; Doc. 8-1 at 7-20.) These facilities are all located within the St. Mary Unit of the Milk River Irrigation Project and are the facilities at issue in this matter. (Doc. 8-1 at 16.)
The water diverted through these structures originates in Glacier National Park. The headwaters of the St. Mary River originate at Gunsight Lake and flow northeast before entering St. Mary Lake. Upon leaving the lake, St. Mary River flows onto the Blackfeet Reservation and then enters Lower St. Mary Lake. The river then meanders through the Canadian border to St. Mary Reservoir. (Doc. 1 at ¶¶ 11-13.)
The St. Mary Diversion Dam is located downstream from Lower St. Mary Lake and diverts water from the St. Mary River into the unscreened St. Mary Canal, through which it is carried to the Milk River and is then used for agriculture, drinking water, recreation, and wildlife habitat in the Milk River Basin. (Doc. 8 at 11.) Additionally, Swiftcurrent Creek has been diverted into Lower St. Mary Lake causing water released from the Lake Sherburne Reservoir to also be diverted into St. Mary Canal. (Doc. 1 at ¶ 18.) Each year during the fall and winter seasons the Sherburne Dam is closed to allow the reservoir to refill. While the dam is closed, Swiftcurrent Creek is left dry from the dam to the Boulder Creek confluence. (Doc. 1 at ¶¶ 19-20.)
The United States Fish and Wildlife Service ("USFWS") listed bull trout (Salvelinus confluentus ) within the coterminous United States as a threatened species in 1999. 64 Fed. Reg. 58,910. Bull trout living in the St. Mary drainage have been affected by Reclamation's operations in the St. Mary Unit. (Doc. 8 at 11.) For example, bull trout entrained in Swiftcurrent Creek face mortality due to the annual dewatering of the creek to allow the reservoir to refill. (Doc. 8 at 12; Doc. 1 at ¶ 21.)
The parties do not dispute that Reclamation's operations are subject to the requirements of the ESA. It is also undisputed that taking bull trout is a violation of the ESA, and Reclamation does not have an incidental take permit or statement from the USFWS which would exempt it from violating the ESA. 16 U.S.C. § 1539(a)(1)(B). However, Reclamation contends that it is currently engaged in formal consultation with the USFWS regarding bull trout in the St. Mary Unit. (Doc. 8 at 14.) Reclamation predicts consultation will culminate in the USFWS’ completion of a Biological Opinion ("BiOp"), which could result in the issuance of an incidental take permit for the St. Mary Unit by September 6, 2020. (Doc. 8 at 14.)
Reclamation moves to dismiss pursuant to Fed. R. Civ. P. 12(b)(1). A motion to dismiss under Rule 12(b)(1) challenges the court's subject matter jurisdiction over the action. As the party asserting jurisdiction, the plaintiff bears the burden of proving its existence. Kingman Reef Atoll Investments, L.L.C. v. United States , 541 F.3d 1189, 1197 (9th Cir. 2008.) The court will presume jurisdiction is lacking until the plaintiff proves otherwise. Stock West, Inc. v. Confederated Tribes , 873 F.2d 1221, 1225 (9th Cir. 1989).
In considering a 12(b)(1) motion challenging the facts supporting subject-matter jurisdiction, a court may consider extra-pleading materials submitted by the parties. Assoc. of American Medical Colleges v. United States , 217 F.3d 770, 778-79 (9th Cir. 2000) ; see also McCarthy v. United States , 850 F.2d 558, 560 (9th Cir. 1988) (). The court may weigh the evidence without converting the motion into one for summary judgment. White v. Lee , 227 F.3d 1214, 1242 (9th Cir. 2000). A federal court is one of limited jurisdiction; it must dismiss a case upon concluding it lacks jurisdiction. High Country Resources v. F.E.R.C. , 255 F.3d 741, 747 (9th Cir. 2001).
Congress enacted the ESA to "provide a program for the conservation of ... endangered species and threatened species," and to "provide a means whereby the ecosystems upon which endangered species and threatened species may be conserved[.]" 16 U.S.C. § 1531(a)(3). The ESA implements its goal of recovering threatened and endangered species to the point where protective measures are no longer needed through Sections 7 and 9 of the Act. See Babbitt v. Sweet Home Chapter of Cmtys. For a Great Or. , 515 U.S. 687, 699, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995) ().
Section 9 of the ESA prohibits any person from "taking" an endangered species. 16 U.S.C. § 1538(a)(1)(B). The ESA defines "take" to include "harass, harm, pursue, hunt, shoot, wound
, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. § 1532(19). The USFWS has extended the ESA's "take" prohibition to certain threatened species, including bull trout. 50 C.F.R. § 17.31(a). The USFWS, however, may find the taking of a species to be "incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." 16 U.S.C. § 1539(a)(1)(B). In such a situation, the USFWS may exempt the "incidental take" from Section 9's take prohibition. The incidental take exemption is typically authorized through an incidental take permit during the Section 7 consultation process. 16 U.S.C. § 1536(b)(4).
Section 7 of the ESA requires federal agencies to ensure that their actions are "not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification" of a species’ critical habitat. 16 U.S.C. § 1536(a)(2). If an agency's action may affect a listed species or critical habitat, the agency must engage in consultation with the consulting agency, the USFWS in this case. 16 U.S.C. § 1536(b). Consultation begins with the preparation of a biological assessment and culminates in the USFWS’ issuance of a BiOp assessing whether the action will likely jeopardize the listed species or result in destruction or adverse modification of its critical habitat. 50 C.F.R. § 402.14(g) – (h).
If the USFWS concludes that the agency action will involve "the taking of an endangered or a threatened species incidental to the agency action [,]" it must provide an Incidental Take Statement ("ITS"). 16 U.S.C. § 1536(b)(4) (emphasis added). The ITS specifies the impact of the incidental taking on the species, specifies reasonable and prudent measures necessary or appropriate to minimize the impact, and sets forth the terms and conditions the federal agency must comply with. 16 U.S.C. § 1536(b)(4)(C). "As long as any takings comply with the terms and conditions of the [ITS], the action agency is exempt from penalties for such takings." Oregon Natural Resources Council v. Allen , 476 F.3d 1031, 1034 (9th Cir. 2007).
Reclamation moves to dismiss Alliance's complaint based on mootness. Reclamation and the USFWS are currently engaged in formal consultation regarding bull trout in the St. Mary Unit. The consultation is expected to result in the issuance of a BiOp and ITS by September 6, 2020. (Doc. 8 at 15.) Because an ITS would exempt Reclamation from the ESA's take prohibition, Reclamation argues that Alliance's Section 9 claim will be moot once USFWS issues an ITS. Reclamation further asserts that the relief Alliance seeks will no longer be relevant once the USFWS issues an ITS, and declaratory relief alone is insufficient to provide the Court with jurisdiction in the absence of a ripe controversy.
Even if the Court finds Alliance's claim is not yet moot, Reclamation argues the Court should dismiss Alliance's complaint because it is prudentially moot. (Doc. 8 at 17.)...
To continue reading
Request your trial
-
White v. United States Army Corps of Eng'rs
...could be fixed, and harm could occur in the intervening period). Prudence does not counsel mootness under such contingent circumstances. See Id. (declining “to in conjecture to presume the consultation will eliminate [the plaintiff's] ability to receive any meaningful relief.”). Thus, becau......